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Rule 801:The Basic Definition
of Hearsay
Start with a fact of consequence
Add an observer
Bring the observer to court
Have observer tell jury what he saw
No Hearsay Problem
Jury
Hearsay Slide
Light was red
Light was red
If witness says something is true, it is SML that it is true
Forbidden Hearsay Inference?
Witness
For this to be probative, whom must jury believe?
The witness who is also the observer.
= Observer
Not hearsay. Jury only has to believe the witness -- no one else
Start with a fact of consequence
Add an observer
Bring the observer to golf course
Have observer tell friend what he saw
Have friend tell jury what she knows
Bring the friend to court
Big Hearsay Problem
Jury
Hearsay Slide
He told me light was
red
Light was red
If observer (who is not the witness) says something is true, it is SML that
it is true
Forbidden Hearsay Inference?
Witness
For this to be probative, whom must jury believe?
The witness and also the observer.
is not the Observer
Hearsay. Jury has to believe an observer who is not testifying.
Definition of Declarant
An observer who is not the testifying witness is called a
declarant
Definition of Declarant 2
A declarant is anyone except:
•This witness•Testifying now•In this court
Basic Definition of HearsayHearsay is evidence of• An out of court
statement• Offered to prove the
truth of • The matter stated
by the declarant
Basic Definition of Hearsay 2
• The jury believes someone
• Who is not currently subject to cross-examination
Hearsay is evidence that has probative value only if
Problem 21A
Do Problem 21A
Have friend tell jury what she knows
Bring the friend to court
Big Hearsay Problem
Jury
Start with a fact of consequence
Usually the FOC is something the
declarant observed about
the external world
But sometimes
it is not.
Problem 21B
Do Problem 21B
When “just saying it” is a FOC
Verbal Act: Slander
Jury
Bill’s a crook
What’s proponent asking jury to think?
Jury
Bill’s a crook
Bill’s really a crook
Bill’s a crook
And isa liar.
Slander Case
He said, “Bill’s a crook.”
He said, “Bill’s a crook.”
No EH required
Witness
But why is “He said, ‘Bill’s a crook”
material.
Because substantive defamation law says so
When “just saying it” is a FOC
Verbal Act: Fraud
Jury
No termites
What’s proponent asking jury to think?
Jury
No termites
Really no
termites
No termites
And he’s a liar.
When “just saying it” is a FOC
Verbal Act: Contract
Formation
Jury
I accept
Can this be true or false?
Contract Case
He said, “I accept.”
He said, “I accept.”
No EH required
Forbidden Hearsay Inference?
Witness
For this to be probative, whom must jury believe?Just the witness.
Not Hearsay. Jury does not have to believe anyone but the witness.
But why is “He said, ‘I accept’” material.
Because substantive
contract law says so
When “just saying it” is a FOC
Verbal Part of Otherwise
Legally Ambiguous
Act: Bailment vs. Gift
Jury
Keep this watch for
me
Happy BirthdayThis is a
giftCan this be true or false?
Can this be true or false?
Bailment v. Gift Case
He said, “This is a
gift.”
He said, “This is a
gift.”
No EH required
Forbidden Hearsay Inference?
Witness
For this to be probative, whom must jury believe?Just the witness.
Not Hearsay. Jury does not have to believe anyone but the witness.
But why is “He said, ‘This is a
gift’” material?
Because substantive
property law says so
Notice: It doesn’t matter
whether he meant it.
When “just saying it” is a FOC
Effect on the Listener
Jury
Water in Aisle 4
What’s proponent asking jury to think?
Jury
There’s water in Aisle 4
Aisle 4 was wet
Sure, but P will have to prove that
some other way
There’s water in Aisle 4
And , heard & therefore
believed it
When “just saying it” is a FOC
Effect on the Listener
Jury
I am going to kill you!
When “just saying it” is a FOC
State of Mind of Speaker
Jury
Water in Aisle 4
What’s proponent asking jury to think?
Jury
There’s water in Aisle 4
Aisle 4 was wet
P will have to prove that some other
way
There’s water in Aisle 4
Since , said it, it is
SML he believed it
When “just saying it” is a FOC
Other Facts About Speaker
Jury
Water in Aisle 4
• Speaks English• If corroborated:
• Was there• Is observant
• If proven false:• Is unreliable on
other issues